### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

uly 11, 2000 STATE OF TENNESSEE v. DARON OPOLIS R. SWEATT Direct Appeal from the Circuit Court for Montgomery County

No. 38944 John H. Gasaway, III, Judge

No. M1999-2522-CCA-R3-CD Filed November 3, 2000

The defendant was convicted of first degree felony murder and aggravated robbery . He was given a life s entence f

or the murder conviction, and eleven years for the robbe ry conviction, with the robbery sentence to be served consecutively to the life sentence. The def endan t appeals his convictions and sentencing, arguing that: 1) the State f

ailed to prove venue by a preponderance of the evidence; 2) the trial court erred in allowingthe prosecutor to ask the defendant why he had not earlier provided the alibi

that he offered

at trial to law enf

orcement offic

ials; 3) the trial court erred in applying enhancement factor (6) to enhanc e the sentence for

his aggravated robbery conviction; and4) that the trial court erred in ordering that he serve hi s aggravated robbery sentence consecutively

to his life sentence. Based uponour review, we a ffirm the judgme

nt of the trial cour

t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES , J., and C ORNEL IA A. C LARK , S P .J., joined. Edward E. DeWerf

f, Clarksville, Te

nnessee, for the

appellant, Daro

nopolis R. Sweatt. Paul G. Summers, Attorne y General and Reporter; L

ucian D. Geise, A

ssistant Attorney

General; John Wesley Carne

y, Jr., Distric

t Atto rney General; and Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant, Daronopolis Sweat t, was convicted of first degree felony murder a nd aggravated

robbery for a homicide and a robbe ry committed in Clarksville, Tennessee. The defendant received a

life sentence for the murder conviction and a consecutive eleven-year sentence for the aggravated

robbery c

onviction. The def

endant timely

appealed to this court, presenting the following issues for review:-2- I. Whether

the Sta te e sta bli she d ve nue by a p reponderance of the evidence;
II. Whether

the trial court erred in allowing the prosecutor to ask, during cross-examination o f the d efendant, why the defendant didnot provide his alibi to law enforc eme nt officials during the twenty-thr

ee months that he w

as in pretrial confine

ment; III. Whether

the trial judge erred in applying enhancement factor (6) in s en tencing the defendant for his aggravated robbery conviction; and
IV. Whether

the trial court erred in ordering the aggravated robbery sentence to run consecutively to the life sentence. After a thorough review of the record and of applicable law, we affirm the judgments of the trial court. FACTS On May 18, 1997, at approximately 6:08 a.m., thirty -one-year-old Sylvester

Cage, Jr., was robbedand shot to death outside a barber shop in Clarksville, Tennessee. The victim, a Kentucky resident who frequently

traveled to Clark

sville to gamble,

spent the evening

of May 17, a

nd the early morning hours of May 18, playing dice at the Ninth Street Barber Shop. The victim left the barber shop when the dice g

ame ended at 6 :00 a.m., and crossed the street to a pay phone outside the Butcher Shop, a business dir

ectly across the street from the barber shop, where he place d a call to his wife. There, the

victim was approached by a masked man with a nine millimeter handgun, who shotthe victim six times. As the victim lay dying, the gunman took a rubber-ba nd wrapped

wad of $1,000 to $2,000 in cash, representing gambling winnings, from the victim’s pocket. The gunman then fled on foot. The defendant was subsequently arrested for the crime, and charged with one count of felony murder and one count of especially aggravated robbery.
At trial, the victim’s

wife testified tha

t the victim

went to Clarksville on the evening of May 17, 1997, to gamble. She sa id that the victim called her at exactly 6:07 the next morning, May 18, to tell her that he was about to start for home. Bobby Ramey, an

acquaintance of both the defendant and the victim, test

ified that the vict

im hadhad a reputationfor gambling, and was known to carry large amounts of cash on his per son. Ramey said that he and the defendant passed the victim on the street approximately one week before the victim was killed, and that when the defendant saw the victim, he told Ramey that, if he got the chance, he inte

nded to rob the vic

tim.-3-

Raym on d Ogburn, a friend of the victim, testified that he and three or four other men, including the victim, spent the evening of May 17, and the early morning hours of

May 18, playing dice at the Ninth Street Barber Shop. Ogburn stated that the barber shop was located at the corner of Ninth and Main Streets in Clarksville. He said that when the dice game broke up at about 6:00 a.m., the victim wrapped a rubber band around his “wad of money,” a nd left with f ellow gambler Geor ge Hoosier. A f

ew minutes later, Ogburn heard “a lot of gunshots.” Ogburn looked out the window and saw a tall, slim , black man, who wa

s w earing a rubber face mask and holding a gun, standing over the vi ctim’s body “in his pocket getting his money out.” As Ogburn watched, the gunman fled across a parking lot between the Butcher Shop

and the auto

parts store next to it, and disappeared

from view. Ogbu

rn went outside to th

e street with

his cordless phone, and

placed a 911 call. Records indicated that this 911 call was received at 6:09 a. m. Ogburn testified that approximately

thirty seconds after the gunman fled, Hoosier drove up in his pickup truck. Ogburn pointed out which di

rection the gun

man had gone, a

nd Hoosier drove o

ff in pursuit. George Hoosier testifiedthat, as he was driving away from the barber shop on the morning of May 18, 1997, he

heard gunshots, looked in his rearview mirror, and saw someone pointing a gun at the victim, and the victim falling to the ground. Hoosier turned his truck around and drove back to the barber

shop, where Ogburn told him which way the gunman had fled. A s Hoosier searched the area, he spotted the defendant, whom he knew and recognized, running down an alley. Driving down a street that runs parallel to the alley, Hoosier was able to track the de fendant’s flight for a couple of blocks,

but eventually

lost sight of him. Sabrina Hester, who worked

for Catholic

Charities of Tennessee which was located near the samealle y down which Hoosier had seen the defendant run, testified that on May 22, 1997, she found a rubber face mask under a large rock in the c orner of the church buildin g’s outdoor picn

ic area. Chantel Jenkins, the defend ant’s ex-girlfr

iend, testified tha

t t he de fendant appeared at her apartment at 526 Main Street very early on the morning of May 18, 19 97, asking that sh

e call him a cab. Jenk i ns stated that she thought the defendant had shown up at her apartment between 5:30 and6:00 a.m., but admitted that she was not certain of the actual time. She said that the defendant stayed in her apartment about five to ten minutes before the cab ar rived to pick him up.
Dean Mead, a Veteran’s Cab Company taxicab driver, testified that at 6:18 or 6:20 on th e morning of May 18, 1997, he was dispatched to pick up a fare at 526 Main Street. Mead said that as he drove toward theapartment b uilding, he was forced to detour around an area that the police had blocked. When he reached 526 Main Street,

the defendant, whom

Mead recognized as someone he hadpicked up several times in the past, got into the f ront seat of his

cab. Mead said that he apologizedto the defendant for having taken a couple of extra minutes to reach him, and that the defendant told him it was “no problem,” and mentioned th at there had just been a shooting in the neighborhood. M

ead testified tha

t the defendant pa

id him with

a $10 bill, which he took out of a large, rubber band wrapped roll of money fr om his pocket.-4-

At the conclusion of t

he State’s c ase in ch ief, the defendant made a motion to dismiss for failure to establish

venue. The trial court denied the motion, finding that numerous State witnesses had, through their testimony, established that the crime occurred in Clarksville, Tennessee

. The defendant testified in his own defense. He stated that he spent the late evening and early morning hours of May 17 and 18, 1997, driving around town, in a car he stole from his mother, selling crack cocaine and smoking marijuana. He said that, sometime between 5:00 and 5:30 a.m, he drove to Chantel Jenkins’ apartment building, bec ause he hopedthat she would agree to have sexual intercourse with him. He parked the car in the apartment building’s parking lot and, as he turnedthe engineoff, broke the key in the ignition. The defendant testified that he then sat in the car, smoking more marijuana and trying, unsuccessfully , to extract the bro k en key from the car’s ignition, before finally going up to Jenkins’ apartment. The defendant stated that helooked at a clock as Jenkins let him into her apartment, and saw th at it wa s between 5:55 and 6:00. On cross-exa

mination, the defe

ndant narrowed t

he time to exactly 5:59 a. m. The defendant te stified that he dec

ided toleave the apartment, and asked Jenkins to call him a cab, when he realized that she already had a man in her bed. The defendant said that he spent approximately thirty minutes in Jenkins’ apartment before the cab a rrived. The defendant stated that soon after the cab driver began to drive him home, a police officer pulled the cab ove

r to the side of the road. The officer directed the defendant to get out of the cab, and, after patti

ng him down, told him

that he was being

held as a suspect. The defendant said that the police officer, however, did not tell him what he was suspected of doing, and that “when he said suspect, I’m thinking about the drugs that I had in my drawers and I broke and ran.” The defendant denied that he had told Bobby Ramey that he intended to rob the victim, and stated that he had

not robbed and kille

d the victim. The State presented t

he rebuttal testimony o

f Officer Micha

el Thornton of the

Clarksville Police Department. Thornton testified that, at approximately 6:25 a.m. on May 18, 1 997, while ca nvassin g the area in which the suspect was reported to have fled, he came across and stopped Mead’s cab. When he learned that Mead had picked the defendant up at 526 Main Street, which was only three and a half blocks from the crime scene, Thornton asked the defendant to step out of the cab. As Thornton patted the defendant down, he “observed a large wad of money folded half over

with a rubbery band wrapped around it” in the right rear pocket of the defendant’s shorts. Thornton then told the defendant that he was placing him in investigatory detent ion, becaus e there had been a shooting just

a few blocks away. At that point, the defendant pulled away from Thornton, and fled on foot. Thornton w

as unable to appr

ehend him.1 The tria l cour t foun d that the St ate ha d fail ed to prove an es senti al el ement of

the cr ime of es pecially aggravated

robbery, tha t the victim suffered “serious bo dily injury,” bec ause, unde r Tenne ssee case la w, the vict im’s death, alone, does not equat e t o serious bodily

injury. Consequently, the trial court inst

ructed the jur

y that i t was dismissing the especially aggravated robbery ch

arge against

the defendant,

but that the jury was free to fi

nd the defendant guilty of the lesser-inclu ded crim es of aggrav ated robb ery or robb ery. -5- After deli beration , the jury found the defendant guilty of first degree felony murder and aggravated

rob bery. 1 The trial court gave the defendant a l ife s entence for the first degree murder conviction. At the sentencing hearing on the defendant’s aggravated robbery conviction, the trial court found two enhancement factors to be applicable under Tennessee Code Annotated Section 40- 35-114: (1) the defenda

nt has a previous h

istory of cr

iminal convictions o

r criminal behav

ior in addition to those

necessary to establish the appropriate range; a nd (6) the personalinjuries inflicted upon or the amount of damage to property sustained by or taken f

rom the vict im was particular ly great. The trial court found no applicable mitigating factors. Accordingly, the trial court sentenced the defendant to eleven years in confinement. Finding that the defendant met the criteria of Tennessee Code Annotated Section 40-35-115(b)(4), as a dangerous offender whose behavior indica ted little or no regard for human life and no hesitation about c

ommitting a crime

when the risk to

human life was high, the trial court ordered that the defendant serve his aggravated robbery se

ntence consecu

tively to his life sentence. ANALYSIS
I. Venue The defendant argues that the State failed to prove venue by a preponderance of the evidence because “at no time during

the State’s case

in chief did

any State’s witnessestestify that the robbery andmurder of Sylv ester Cage occurred in Montgomery County, T ennessee.” The defendant a rgues, therefore, tha

t the convictions mu

st be vacated an

d the case reman

ded for a new tri

al. The State argues that it met its burden of proving ven ue b y presenting the uncontradicted testimonyof numerous witnesses who stated that the offe nses occurr ed in Clarksville, Tennessee. The State asserts that the jurors, all of whom were residents of Clarksville, Mont gome ry Co unt y, Tennessee, could logically infer that if the offe nses oc curred in Clarksv ille, they oc

curred in Montgomery County.
As provided by

article I, se

ction 9, of the Ten

nessee Constitution

, a defendant in

a criminal case has the right to be

tried by an i

mparti al jury of t

he county in which the crime was committed. Tenn. Const. art. I, § 9; see also Tenn. R. Crim. P. 18; State v. Anderson , 985 S.W.2d 9, 15 (Tenn. Crim. App. 1997). Proof of venue is necessary to establish the court’s jurisdiction. See Harvey v. State , 213 Tenn. 608, 612, 376 S.W.2d 497, 498 (1964); Hopson v. State , 201 Tenn. 337, 299 S.W.2d 11, 14 (1957). Since venue is not an element of the crime, the Sta te n eed o nly p rov e by a preponderance

of the evidence

that the charge

d offense was co

mmitt ed in the cou nty in which the def endant is being tried. State v. Bennett , 549 S.W.2d 949, 949-50 (Tenn. 1977); Anderso n , 98 5 S.W.2d at 15; see Tenn. Code Ann. § 39-11-201(e) (1997). Venue may be proved by circumstantial-6-

evidence, and even slight e vidence is suffic

ient if it is uncontradicted. Bennett , 549 S.W.2d at 949- 50. Finally, a j ury is

entitled to draw reasonable inferences from proven facts to establish venue. Id .; Hopson , 299 S.W.2d at 14.
In this case, several State witnesses testified that the robbery and murder of the

victim occurred outside the Ninth Street Barber Shop in Clarksville, Tennessee. From this uncontradicted tes tim ony, the jury could reasonably infer t h at the offenses occurred in Montgomery County

. See Statev. Chris Smith , No. 03C01-9807-CR-00259, 1999 WL 619042, at * 2 (Tenn. Crim. App. Aug. 17, 1 999) (holding that State met its burden of proving venue in McMinn County by pr oof tha t offenses occu rred in A the ns b ecau se “j ury c ou ld properly determine that Athens is in McMinn County”); State v. Marbury , 908 S.W.2d 405, 4 08 (Tenn. Crim. App. 1995) (holding that police officer’s testimony that

DUI arrest

occurred when

he was running r

adar while on duty

as Somerville police officer sufficient

to establish venue in Fayette County). We conclude, therefore, that the State met its burden of proving venue in Montgomery County by a preponderance of the evidence.
II. Cross-Examination of Defendant Regarding his Pretrial Silence The defendant argues that the trial court committed re versible error

by allowing

the State to ask him why he had not

provided the same account of his whereabouts that he offered at trial to law enforcement

officials during the twenty-three months he spent in pretrial confinement. Dur ing the State’s cross-examination of the defendant, the following exchange took place:

Q. And in all this twenty-three months that you have been sitting i n jail, did you ev er once te ll any law enforcement official where y ou were that night

?
A. I talked to a c

ouple of them,

I told them I was hustling and I went over to my girlfriend’s house. Q. You told police o

fficers that?
A. Yeah I didn’ t–yeah, we talked about i

t sometime. We talked–I talked to the police officers before the trial just happened to start up. Q. You are talking about this case, during the course of the investigation, did you ever talk to Detective Chery l Anderson?
A. No.2 The State has drawn our attention to the fact that the defenda nt’s lawyer’s name is misspelled a s “DeW erf” throughout the transcript of t he trial. We, therefore, have corrected the spell ing in this opinion. -7- MR. DEWERFF 2 : Your Honor, may we approach please?
THE COURT: Yes. (WHEREUPON, a bench conference was had between Court andCounsel, the same b

eing with in the presence but outside the hearing of

the jury as f

ollows:)
MR. DEWERFF: I believe this is an improper cr

oss examination of the d

efendant’s rig

ht to remain silent.
THE COURT: Based on what, Mr. Dewerff?
MR. DEWERFF: That he doesn’t have to make a statement, your Honor. THE COURT: The objection is overruled. (WHEREUPON, end of bench conference.)
THE COURT: Go ahead, please. Q. (By General Young) When you turned yourself in on the 19th, Mr. Sweatt, it was Detective Anderson that booked you–
A. Yes ma’am. Q. –took your

fingerprints?
A. Yes ma’am. Q. Took the informa

tion for the intake

sheet?
A. Yes ma’am. Q. At that time, did

you tell her where you had be en the night

before?
A. No ma’am, we did no t–she asked me did I

want totalk

to her and I told her no.-8- Q. And you knew what you were charged with?
A. Yes ma’am. Q. You were charged with first degree murder?
A. Yes ma’am. Q. And instead of tell

i ng her wh ere you we

re while there w

ere still people around tha

t might have known

, you sat on it f

or two year

s?
A. Well, I

am just going to tell you, I was advised when I was coming down here not to talk to nobody until I talked to a lawy er. The defendant argues that this line of questioning by

the State amounted to an impe

rmissible comment upon his Fifth Amendment right to remain silent. The defendant further a rgues that the error was not harmless be

cause the State ’s quest

ioning cast doubt upon his credibility, which was crucial to his defense. The State argues that

the line of questioning it employed was not an improper comment upon the defendant’s rig

ht to remain silent,

but in stead was a valid impeachment of the defendant’s statement that he had “talked to a couple [of police officers]” and

told them that he was “ hustling” andhad gone over to

his girlfriend’ s house. The State asserts that, by

taking the stand, the defendant openedhimself

up to impeachment by any prior inconsistent statements he may have made, or by any prior inconsistent actions that he may have taken. The State also argues that, eve n if the questions were improper, they constituted harmless error.
It is well established

that a defendan

t may not be pe

nalized at trial f

or the exe

rcise of his constitutional rig

ht to remain silent a

fter arrest. Doyle v. Ohi

o , 426 U.S. 610, 618, 96

S. Ct. 2240, 2245, 49 L. Ed. 2d

91 (1976); Braden v. State , 534 S.W.2d 657, 661 (Tenn. 197 6); State v. Mabe , 655 S.W.2d 203, 205 (Tenn. Crim. App. 1983). Thus, the prosecution should nei ther comment on a defendant’s post-arrest silence, nor use it to impeach a defendant’s testimony during trial. Braden , 534 S.W.2d at 660; Mabe , 655 S.W.2d at 205; Ware v. State , 565 S.W.2d 906, 908 (Tenn. Crim. App. 1978); Honeycutt v . State , 544 S.W.2d 912, 917 (Tenn. Crim. App. 1976). However, evidence of the defendant’s pre t

rial silence may be admitted, with caution, in those instances in which the defendant’s silence is patently inconsistent with his testimony at trial. Braden , 534 S.W.2d at 660; Ware , 565 S.W.2d at 908; Kelley v. Sta te , 478 S.W.2d 73, 75 (Tenn. Crim. App.), cert

. denied(Tenn. 1972 ) (holding that cross-examination of defendants regarding their pretrial silence was proper, since defendants’ testimony at

trial that they were attempting to inform police of a burglary and to return stolen property a

t the time of their a

rrest contraste

d with their

refusal to makestatements to the police or to allow police to search their vehicles). “Where a defendant testifies to an exculpatory version of events and claims to have told the police the same v ersion of events upon arre

st, then his postarrest silence can be used to contradict him.” Ware , 565 S.W.2d at 908.3 In Braden , the court concluded that t he prejudice to t

he defendants re sulted no t from the bri

ef improper question regarding the defendants ’ pretrial silence but

from the jury

arguments of t

he State regar

ding that s

ilence. 534 S.W.2d at 660. -9- On dir ect examination, the defendant made no mention of having given law enforce men t officers the same account

of his whereabouts that he offered at trial. The prosecutor’s initial question of whether the defendant had “ever once” told the story to any law enfor cement officials during the months he was in pretrial confinement, therefore, was improper. We also find the last que sti on improper, in which the prosecutor referred to the defendant having “sat on” the alibi information for two years. See Braden , 534 S.W.2d at 660 . Weno te, however, that defense counsel did not immediately

object to the initial question, and that the defendant, by responding with testimony in dicating that he had, afte r his arrest, gi

ven police offic

ers the same alibi

that he offered

at trial, openedhimself up to much of the State’s subsequent questioning. See Braden , 534 S.W.2d at 660 ; Ware , 565 S.W.2d at 908. These subsequent questions, which primarily attempted to elicit whether the defendant had told the story to the police detective who inter viewed and booked him when he turnedhimself in, were c

learly des igned to impeach

the defendant’s

claim that he had g

iven the same alibi to police that he had just offered at trial.
In a recent

case, State v. Terry Lucas , No. 01C01-9811-CC-00458, 2000 WL 19537 (Tenn. Crim. App. Jan. 13, 2000), t his court found tha

t t he imprope r comment upon the defendant’s right to remain silent made by one of the State’s witnesses did not rise to the level of reversible error when, inter alia : there was no indication that the prosecutor intentionally elicited the comment in

order to create an inference o

f the defendant’ s guilt; it did not app ear that the comme

nt, when viewed in context, wou ld n eces sar ily c aus e th e ju ry to draw an inf erence of the defendant’s guilt; and the prosecutor

made no reference to the

defendant’s pretrial silence during closing arguments. Id . at *4.
In Momon v. State , 18 S.W.3d 152, 163-65 (Tenn. 1999), our supreme court recognized the applications of the harmless er ror do ctrine to constitut

ional violations, in b

oth the federal c

ourts, Chapman v. California

, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and the Tenne sse e courts, including situations in which the prosecutor improperly commen ted upon the defendant’s privilege against self-incrimination. State v. Transou , 928 S.W.2d 949, 960 (T enn. Crim. App. 1996) (holding that prosecutor’s improper comment upon the defendant’s right against self-incrimination andright to

remain silent

during the trial, made in argument, was harmless error). Apply ing such an analysis to the instant case, we find that the improper questions of the prosecutor were harmless error. During her closin g argument, the prosecutor made no reference to the defendant’s pretrial silence regarding th

e alibi. 3 W e also note t hat the entire exc hange at issue c

omprised only

a small portion of the prosecutor’s cross-examination of the defendant, and that there was no indication that the prosecutor’s q uestions were de liberately intended to lead th

e jury to inf

er the defenda

nt’s guilt from his pretrial silence. In its case in chief, the State made out a str ong case aga

inst the defendan

t, presenting substantial evidence from which the jur y could dete

rmine that the def

endant was guilt

y of the offenses charged. Viewing t he record as a whole, we cannot find that the State’s improper reference to the defen dant’s pret rial silen ce, made in o ne brief ex change during a fairly leng thy trial,-10-

hada prejudicial eff

ect upon the j ury’s verd ict. We conclude, t

herefore, that

these comments constituted harmless error. III. Use of Enhancement Factor (6) The defendant next argues that the trial court erred in applying enhancement factor (6), “the personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularl y g reat,” to enhance his aggravated robbery sentence. The defendant

asserts that it was error for the

trial court to appl

y this enhancement factor because the death of the victim, upon which the trial court relied to find the enhancement factor applicable, “is an element of the offense of first degree murder.” The State argues that the record supports the trial c ourt ’s use of this enhancement factor. When an accused

challenges the length and manner of service of a sentence, it is the duty of this court to conduct a de n ovo rev iew on the record with a presumption that "the determinations made by the court from which the appeal is taken are corre ct." Tenn. Code Ann. § 40-35-401(d ). This presumption is "conditioned upon the affirmative showing in the rec ord that t he trial court considered

the sentencing

principles and al

l relevant facts

and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The weight to be afforded an enhancement or a mitigating fac

tor is left to the trial court’ s discretion as lon g as the trial co

urt complies with

the purposes and

principles of the 1989 Sentencin

g Act, and its find ings are adequately supported by the record. Tenn. Code Ann. § 40-35-210 (1997), Sentencing Co mmission Cmts.; Statev. Moss , 727 S.W.2d 229, 236 (Tenn. 1986).
T he applicability of a particular enhancement factor must be deter mined on a case b y cas e basis. State v. Lavender , 967 S.W. 2d 803, 807 (Tenn. 1998). The same facts used to establish an element of the charge

d offense may not be relied upon to find an enhancement factor applicable for increasing the defendant’s sentence for that offense. Id. (citing Statev. Jones , 883 S.W.2d 597, 601 ( Tenn. 1994)). The burden to show the erroneous application of a sentencing enhancement fac tor rests upon the defenda

nt, as the party

challenging t

he sentence impos

e d by the t

rial court. See Sentencing Commission Cmts. to Tenn. Code Ann. § 40-35-401; Ashby , 823 S.W.2d at 169; State v. Butler , 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994). The defendant argues that the trial court erred in apply ing enhancement

factor (6) because the death of the victim, the fact upon which the trial court relied to find enhancement factor (6) applicable, was an essential element of the crime of first degree murder. However, the trial court appliedenhancem en t factor (6) not to the defendant’s sentence for first degree murder, but to the defendant’s sentence for aggravated robbery. The relevant inq uiry, there

fore, is whether

the same facts upon which the trial court relied to find factor (6) applicable were necessary to establish an element of the defendant’s crime of aggravated robbery

. Aggravated robbery is defined in Te nnessee Code Annotated Section 39-13-402:4 Tennessee Code Annotated Section 39-13- 401 defines robbery as “the intentional o r knowing the ft of proper ty from the person of another by violence or putting the person i n fear.” Tenn. Code Ann. Section 39-13-401 (1997). -11- (a) Aggravated robbery

is robbery as defined in § 39-13-401: 4 (1) Accomplished with a deadly weapon or by display of any article used or fas

h ioned to lead the vi

ctim to reasonably

believe it to be a d

eadly wea pon; or (2) Whe re t he v ict im s uff ers ser iou s bo dil y inj ury.

. . . . Tenn. Code Ann. § 39-13-402 (1997) (emphasis added). Thus, a defendan t can b e convicted of aggravated

robbery if the facts show either that the defendant used

or displayed a deadly wea pon, or that the victim suffered serious bodily injury . Especia lly aggravated robbery

, by contrast, requires both t hat the defend ant used a deadly weapon and tha t th e vi cti m su ffer ed s eri ous bod ily i nju ry. Compare Tenn. Code Ann. § 39-13-402 with Tenn. Code Ann. § 39-13-403 (1997).
In this case, th

e trial court dismissed the especially aggravated robbe ry charge against the defendant,

finding that the evidence did not support a finding that the v

ictim suffered “serious bodily injury,” as that term is defined by statute and case law. The defendant’sconviction for aggravated rob bery, therefore, must have been based solely on subsec tion (1) of Tennessee Code Annotated Section 39-13-402, the defendant’s use of a deadly weapon. The trial court

found factor (6) applicable to enhance the defendant’s sentence for aggravated robbery because the personal injuries inflicted upon the defendant were particularly

great. This is a different fact from that re

lied upon, the def

endant’s use

of a deadly weapon, to establish an element of the crime. In discussing the applicability of fa ctor (6), the court stated: Next the State arg

ues that the perso

nal i njuries inflicted upon the defendant–excus

e me upon the vic tim were particularly great. The Courtfinds that

that is a factor that should apply. Aggravated robbery does not contemplate that anyone will

necessarily

be injured, and, so, the Court will apply that and give it the weig

ht to which it

is entitled. The trial court’s finding in this matter is supported by the record. The evidence showe d that the defendant shot the victim six times with a nine millimeter handgun, striking him in the leg, chest, abdomen, and arm. The victim died as a direct res ult of the gunshot wounds to his chest and abdomen. We conclude, therefore, that the trial court did not err by its use of sentencing enhancement factor (6) to enhance the defendant’s sentence for aggra vated robbery. See State v. Eric DeW ay ne McElmore , No. 03C01-9802-CR-00056, 1999 WL 301489, at *3 (Tenn. Crim. App. May 14, 1999),-12-

perm . app . denied(Te nn. Nov . 22, 1999) (holding that enhancement factor (6) improperly a pplied because no proof in record as to the seriousness of the victim’s wound). IV. Consecutive Se

ntencing The defendant argues that the trial court erred in ordering that his agg ravated robbery sentence of eleven ye

ars be served c

onsecutively

to his life sentenc

e for first degree murder. The defendant contends that the trial court failed to make the additional findings necessary to impose consecutive sentencing upon a defendant who is classified as a dangerous offender , that the aggregate length of the sentences was r

easonably related to the severity of

the offenses, and that consecutive sentencing was necessary in order to protect the public from further cr iminal conduct by the defe ndant. The Stateacknowledges

that the trial cour

t failed to make the

se specific find

ings, but argu es that the record supp orts the tr ial court’s impositi on of consec utive sent encing.
Tennessee Code Annotated Sec tion 40-35-115 pro

vides tha t the trial court ma y, in its discretion, impose consecutive sentencing on a defendant con victed of multiple offenses if it finds that the defendant falls into any one of several different categories, among which is subsection (b)(4), “The defendant is a

dangerous offender whose behavior indicates little or no regard for human life, andno hesitat ion about c ommittin g a crime in wh ich the ris k to human l ife is high [.]” Tenn. Code Ann. § 40-35-115(b)(4) (1997). If the trial court bases consecutive sentencing upon its classification of the defendant as a dangerous offender, however, i t is re quired to make further findings that the defendant’s sentence reasonably relates to the severity of his offenses, and is necessary to protect the public from further criminal conduct of the defendant. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson , 905 S.W.2d 933, 937-38 (Tenn. 1995). Since the trial co urt failed to

make these findings, we review thi s issue de no vo , with no presumption of correctness given to the trial court’s decision.
Our review of the record

leads us to conclude that the trial court properly imposed consecutive sentencing upon the defendant in this case. The circumstances of the defendant’s crime, in shooting the victim six times, and then r obbing him as he lay dying in the street, c learly justifies the trial court’s classification of the defendant as a dangerous offender. These same facts support a finding that con secu tiv e sen ten cin g is r easo nab ly re lat ed t o th e sev eri ty of the de fendant’s offe nses, and is necessary to protect the publ

ic from further c

riminal activity

of the defendan

t. CONCLUSION
We conclude that the State established venue by a preponderance of the evidence, and that

the State’s improper question s regarding t

he defendant’s

pretrial silence

did not constitute re

versible error. We further conclude that the trial court did not err in applying sentencing enhancement fac tor (6) to the defendant’s aggravated robbery conviction, and that th e record supports the trial court’s imposition of consecutive sentencing. Accordingly, we affirm the judgment

of convictions, and the length and manner of sentencing imposed.-13- ___________________________________ ALAN E. GLENN, JUDGE